California Bar Journal
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What use is the BOG, anyway?
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President, State Bar of California
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Palmer Madden, President, State Bar of CaliforniaAt a recent planning meeting of the Board of Governors ("BOG") of the State Bar, the leader of the meeting asked a provocative question: "Would the State Bar be able to function without the BOG?" Good question. It costs more than $1 million a year to cover the costs of governance of the State Bar. While this expense is comparable to what other similar organizations spend on governance (such as the California Medial Board), I can't help but wonder if our members are getting a good value for their money.

Why not just eliminate the BOG and save our members some of this cost?

The heart of the State Bar operation is the admission and discipline system. More than 80 percent of the State Bar's budget is devoted to this system. But if one were to take the meetings of the BOG over the last three years and count the words that are devoted to the issue of the admissions and discipline system, less than 10 percent of the words would be devoted to this key function of the State Bar.

With respect to the admission system, most of the governance, such as it is, is done by the Committee of Bar Examiners (CBE). The BOG gets an occasional report from the CBE, but that is it. With respect to the discipline system, whenever the BOG has wandered into some discussion of the discipline system, it has been characterized as engaging in an attempt to micromanage and has scooted away from any real examination of the discipline system.

So, what then does the BOG concern itself with? Historically, most BOG time has been devoted to listening to staff reports about operations and passing resolutions endorsing obscure rule changes.

The bulk of the rest of the BOG's time has been devoted to issues raised by the Conference of Delegates, the sections and the occasional issue raised by a board committee. But, while the rule changes are important and the conference and other sub-units of the bar do raise important issues, the BOG's devotion of time to these issues has precluded our engaging in the policy role we can and should be pursuing.

What is wrong with this picture? What is wrong is that the BOG is missing the opportunity to do what it can do best. What can the BOG do best? The BOG functions best when it serves our members by providing leadership concerning the overall policy of the State Bar.

As elected members of the profession and appointed members representing the public, the BOG is best suited to point the State Bar in the right direction, leaving the staff to attend to the day-to-day administration of the bar. 

It is not that leaders of the BOG haven't tried to change things. Past presidents Tom Stolpman and Andy Guilford both pressed the BOG to adopt a "policy focused" model of governance. In his final report, the Special Master appointed by the Supreme Court, Justice Elwood Lui, urged the BOG to lift itself above the minutia and focus on policy.

Even Chief Justice Ronald George has directly urged the BOG to move towards a policy governance model. Through the Judicial Council, the chief justice provided funds for the BOG to hire a consultant to help us make this transition. Some members of the current board, especially David Roth, have been trying to drive the board towards a policy governance structure.

In the face of the obvious weaknesses of the current governance model and the opportunity presented by adopting a policy focus, why has not the BOG shifted towards policy governance?  Well, it is not that it hasn't tried. It has.

This year, for example, the BOG adopted a plan for its meetings that allotted time from each meeting to focus on a given policy issue, such as the need to provide access to justice, MCLE, MDP, MJP, etc. Now, at best, this effort has been partially effective. Why then doesn't the BOG wholeheartedly embrace a policy governance structure? 

Having watched the BOG struggle with this issue for four years, I now see some of the reasons why the BOG has not made such a shift. First, for two-plus years, the BOG was dead in the water because of the veto of our dues bill. For over two years, the BOG had to focus exclusively on the problems raised by that veto.

Second, a number of members of the BOG are concerned that if the BOG adopted a full- on policy governance model, the BOG would find itself endlessly debating "mission statements" and similar time-wasting efforts. I couldn't agree more that this is a legitimate concern.

Third, the elected attorney BOG members are all well aware that they have only one three-year term within which to make a contribution to the bar. Each brings to the BOG some goal that they want to pursue - it may be that they want to steer the State Bar towards more vigilant efforts to eliminate the unauthorized practice of the law or to increase diversity in the attorney population or some other well-intended goal.

BOG members are concerned that if the BOG wanders off in pursuit of policy governance, they will not be able to pursue the policy initiatives they want to pursue. (I have myself in mind when I make this observation. I have been as guilty as anyone of this sin.)

I also agree that this is a legitimate concern, but I believe that we can pursue a policy governance model for the BOG without giving up our ability to undertake initiatives. 

The answer is that, to some extent, the BOG needs to make a leap of faith. The BOG members are well aware of the flaws in the current structure and are unanimously in favor of moving towards a model of policy governance.

But, when we discuss the issue, we bog down (sorry, I couldn't resist) in the details about how to accomplish our shared goal.

The time has come for us to stop debating the details and just do it. We need to commit ourselves to a full-fledged effort to undertake a policy governance model. We owe this effort to ourselves, the staff and our members.